Friday, November 13, 2015

Arkansas County's Nativity Scene Violates Purpose Prong of Lemon Test

In American Humanist Association v. Baxter County, Arkansas, (WD AR, Nov. 12, 2015), an Arkansas federal district court held that a privately-owned nativity scene that has been erected on the Baxter County Courthouse lawn for the past 40 years violates the Establishment Clause, despite changes made in recent years to attempt to avoid this conclusion. The display has long been accompanied by a Christmas tree, and in recent years by Santa Claus and reindeer figures. In 2014, the county leased the land on which the display sits for $1 to the Chamber of Commerce for the specific purpose of erecting a nativity display. It also added a sign with a disclaimer saying that the county is saluting liberty, and the display is owned and erected by private citizens. The court held that whatever the relevance of these details under the Lemon test on whether the display has the effect of promoting religion, these details are irrelevant when the purpose of the display is predominately religious. The court said in part:

The record leaves no room for doubt that, as the owner of the creche stated during his deposition, "[o]bviously the purpose of it was to celebrate Christmas." ... [Also] there is no dispute that in December 2013, Judge Pendergrass [the County CEO] denied at least two separate requests to install a banner near the creche stating "Happy Solstice."

The court in its judgment entered a declaratory judgment and injunction, and awarded $1 in nominal damages, against the county and its CEO in his official capacity. It held that the county CEO in his personal capacity had qualified immunity from a damage claim. The court's injunction provides that defendants must either

(1) refrain from placing any religiously sectarian seasonal display on the courthouse grounds, or (2) create a public forum on the courthouse grounds for a seasonal display open to persons of all faiths as well as of no faith at all, without discrimination on the basis of viewpoint.